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Commission Adopts Guidelines for Self-regulation Measures Concluded by Industry

The European Commission has issued guidelines for self-regulation measures concluded by industry (the Guidelines), under Directive 2009/125/EC establishing a framework for the setting of ecodesign requirements for energy-related products (the Ecodesign Directive).

According to the Ecodesign Directive, products which meet a number of conditions, either need to be covered by an implementing measure or by a self-regulation measure concluded by industry, in order to modify or complete non-essential elements of the Directive. The Guidelines provide a framework for such self-regulation measures, and are intended to facilitate their establishment and implementation. Moreover, the Guidelines should ensure the consistency of such measures.

According to Article 15 of the Ecodesign Directive, a product needs to be covered by either an implementing measure, or by a self-regulation measure, if the product:

  • represents a significant volume of sales and trade (indicatively more than 200,000 units a year within the EU);
  • has a significant environmental impact within the EU, considering the quantities placed on the market and/or put into service;
  • shall present significant potential for improvement in terms of its environmental impact without entailing excessive costs, taking into account in particular: (i) the absence of other relevant EU legislation or failure of market forces to address the issue properly; and (ii) the wide disparity in the environmental performance of products available on the market with equivalent functionality.

Industry can present self-regulation measures as an alternative to implementing measures. The industry’s proposal will then be assessed by the Commission on the basis of Annex VIII of the Ecodesign Directive. The Guidelines clarify the admissibility and management of such initiatives, in particular by further explaining the criteria laid down in Annex VIII of the Ecodesign Directive. 

Current self-regulation measures (known as ‘Voluntary Agreements’) have been adopted for complex set-top boxes, imaging equipment and games consoles.

In the Guidelines, the European Commission recalls that it will give priority to self-regulation measures for products that are included in an Ecodesign Working Plan. The Ecodesign Working Plan is published every three years and contains a list of product groups which are considered as priorities for the adoption of implementing measures. Hong Kong companies may recall that the current Ecodesign Working Plan was published on 30 November 2016.

Further, the European Commission refers to the principle that, when it has recognised a self-regulation measure on the basis of the Ecodesign Directive, it will refrain from adopting an implementing regulation for that product. However, it will reassess the situation in case monitoring or feedback from stakeholders indicates flaws in the implementation of the measure. Moreover, the recognition of a self-regulation measure does not prevent the adoption of legislation under other policy instruments for the product group in question. 

The Guidelines provide that companies interested in establishing a self-regulation measure should make a public announcement before the process of developing the measure is started. Moreover, a contact point should be provided in order to give an opportunity for other companies to participate.

Proposals for self-regulation measures should be accompanied by an explanatory note, supported by evidence detailing the added value of envisaged measures. In particular, the explanatory note should set out how the proposed measure would meet the ecodesign objectives more quickly or at a lower cost than mandatory requirements.

The signatories of a self-regulation measure should have an EU-wide market coverage representing at least 80% of units of the type of product covered by the measure. The signatories should provide the European Commission with evidence, compiled or verified by an independent legal or natural person, which shows that the minimum degree of representativeness has been reached.

A self-regulation measure should list all types of products falling within, as well as the products exempted from, its scope. The Guidelines clarify that any exemption, for products which would normally fall within the scope of the measure, requires a justification. The measure should lay down design and information requirements for all products falling within its scope. These requirements should relate to significant environmental impacts over the product life-cycle, and aim at improving the environmental performance of the products. According to the Guidelines, compliance with these objectives should rely on clear and reliable indicators.

With regard to the involvement of civil society, the Guidelines prescribe that the Consultation Forum should be consulted on any proposal for a self-regulation measure. The Consultation Forum is established by the Ecodesign Directive, and includes Member States' representatives, industry, trade unions, traders, retailers, importers, environmental protection groups and consumer organisations. In addition, each self-regulation measure should establish a Steering Committee that will manage the operation of the measure.

Further, the Guidelines prescribe that a website should be established for the self-regulation measure; that each interested party can submit complaints relating to non-compliance; and, that requests for access to technical data by the European Commission, the Steering Committee and market surveillance authorities of the EU Member States will be satisfied.

Finally, as regards monitoring and reporting, the Guidelines set out that the self-regulation measure should lay down a procedure to select an Independent Inspector in charge of monitoring compliance of signatories with the measure. Annually, all signatories should provide documentation to this Independent Inspector, who may also carry out inspections without advance warning. Non-compliance should be subject to a graduated scale of sanctions.

Hong Kong traders wishing to consult the full texts, can click on the following links:
The Commission Guidelines
The Ecodesign Directive
The 2016-2019 Ecodesign Working Plan

Content provided by Picture: HKTDC Research
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